September Term Roundup

There were only two reversals in criminal appeals this term, People v Rodriguez (2007 NY Slip Op 07123)(Here, discussed previously) and People v Jones 2007 NY Slip Op 07249)(Here), in which after a remand for the trial court to make fact finding on whether the search was consensual, the Court that

the People did not meet their burden of demonstrating the legality of the police conduct, and thus the court suppressed the tangible evidence seized pursuant to the purportedly consensual search of the vehicle. We reject the People's contention that the court erred in its determination. In reviewing suppression issues, great weight is accorded to the determination of the court "with its peculiar advantages of having seen and heard the witnesses" (People v Prochilo, 41 NY2d 759, 761; see People v Williams, 202 AD2d 976, lv denied 83 NY2d 916). Here, the court's factual findings are supported by the evidence and should not be disturbed (see generally People v Miller, 244 AD2d 828).

The Court thus reversed the conviction.

Some other decisions which caught my eye, include

People v Adams (2007 NY Slip Op 07237)(Here) an appeal from an arson conviction in which the defendant urged

that the expert testimony of the arson investigator at trial improperly invaded the jury's province. Although we agree with defendant that County Court erred in allowing the arson investigator to testify that the fire was intentionally set, we conclude that the error is harmless.

People v Bryant (2007 NY Slip Op 07182)(Here)in which the Court held that despite the victim testifying at trial that one of the police officers who showed her a photo array pointed to one of the photographs and said, "[I]sn't that the guy in one of those pictures" it was not error for the court to deny defense motion to reopen the Wade hearing. The Court explained

In denying defendant's motion, the court stated that the victim "seemed somewhat confused" during her testimony and ruled that it would allow defense counsel to point out the identification issue to the jury during summation. The court also permitted defense counsel to cross-examine the police officers involved in the identification procedure, and both officers denied directing the victim to select a particular photograph. We therefore conclude that the court did not abuse its discretion in denying defendant's motion to reopen the Wade hearing
Thus, a defendant cannot call the victim as a witness at the pre-trial Wade hearing and cannot get the hearing reopened when the victim finally testifies at trial and gives describes a suggestive procedure..

On a more pleasant note, People v Agha (2007 NY Slip Op 07187)(Here remanded a case for resentencing, because it was confident that the sentencing court's claim that it had not considered impermissible information in imposing sentence was accurate.

At sentencing, County Court referred to a prior conviction of defendant's brother for a similar crime. The court indicated that, in the prior case and the instant case, defendant's brother had come to the defense of defendant. Defendant objected on the ground that he was not charged in the prior case involving his brother. Although the court stated that it would not draw an adverse inference against defendant based on the prior case, we conclude on the record before us that the court may in fact have relied upon information that was inaccurate in sentencing defendant (see People v Gardner, 28 AD3d 1221, 1223, lv denied 7 NY3d 812).

Judge Smith dissented.

In People v Vasquez (2007 NY Slip Op 07168) (Here), after again holding that

[b]y failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in ruling that the People could cross-examine him with respect to a previous conviction of rape

the Court reduced Mr. Vasquez's sentence to 7½; to 15 years explaining

in view of the circumstances of this case, including the small quantity of cocaine possessed and sold by defendant, we conclude that the sentences imposed for the criminal sale of a controlled substance in the third degree and each count of criminal possession of a controlled substance in the third degree are unduly harsh and severe.

The decision does not set forth the circumstances nor the quantity of cocaine involved.

Similarly, in People v Miller (2007 NY Slip Op 07121) (Here), the Court lowered the SORA risk level, where

The point total on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one risk, and the Board did not recommend an upward departure from that risk level. We conclude on the record before us that County Court erred in granting the People's request for an upward departure from defendant's presumptive risk level to a level three risk. "The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure" (People v Fuller, 37 AD3d 689; see People v Burgos, 39 AD3d 520).

Renewal Required

The need to renew previously made requests has been in the news recently with lots of reminders that if you don't a request to be on the "Do Not Call Registry" you can expect a bunch of unwanted phone calls ( Example). And for years New York courts have been reminding us, in not quite so friendly a fashion, a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof, including the defendant's (Here).

The impact of this requirement to renew TOD motions if the defense puts on any proof was highlighted again by two decisions of the Appellate Division, Fourth Department issued on September 28th.

In People v Rodriguez (2007 NY Slip Op 07123)(Here) a depraved murder conviction was reversed and indictment dismissed where the Court held

that there is no valid line of reasoning and permissible inferences that could have led the jury to conclude that his conduct was reckless rather than intentional, particularly in view of the number and severity of the wounds inflicted on the victim

In Rodriguez, the evidence at trial

included forensic testimony establishing that defendant stabbed the victim eight times and that four stab wounds punctured her lungs and two struck her heart.

By contrast, in People v Wright (2007 NYSlipOp 07167)(Here), in which the defendant contended
that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

That was the same type of claim that the Court reversed on in People v Casper (Here) last term.

As to the claim that there could be no trial strategy justifying the defense counsel's ignoring the long established requirements of Hines, the Court wrote

We reject the contention of defendant that defense counsel's failure to renew his dismissal motion after he presented evidence amounted to ineffective assistance of counsel.

No authority for no kids

Three years ago there was world wide media coverage of a decision by a Family Court judge in upstate New York which ordered that a woman with a history of drug abuse not have have any more children (Example: here ).

The actual language of the order was that the woman

shall not get pregnant again until and unless she has actually obtained custody and care of [all her children].

This do not procreate order was unprecedented in New York and had been issued without any notice to the parties. Yesterday, in an appeal briefed and argued by Eric, the founder of this blog, the Appellate Divison, Fourth Department reversed.(Available here ).

After holding that the court had erred in refusing to hold a hearing on before imposing such an unprecendented condition, the Court ruled that the Family Court, which

possesses only the power which is explicitly conferred on it by statute

had no authority to impose the "no pregnancy" condition.

The Court did not reach the constitutional grounds for the appeal.

The reversal is getting almost as wide a play as the original decision (example).

Oh

In People v Rivera, 2007 NY Slip Op 06583,the Court of Appeals had an opportunity to provide courts and practitioners guidance as to the circumstances when a prospective juror's use of the words “try” and “believe,” in response to being questioned about whether he could be fair, is so equivocal that a for cause challenge must be granted. Perhaps the best measure of how difficult it has been for lower courts to apply the Court of Appeals prior holdings on this issue are the three lengthy opinions authored by the First Department panel that heard this case (People v Rivera, 33 AD3d 303 [1st Dept 2006] [here].

So what did the Court hold?

The trial court did not err as a matter of law in denying defendant's for-cause challenge to prospective juror R.P. (see People v Arnold, 96 NY2d 358,362-363 [2001]; People v Johnson, 94 NY2d 600, 610-614 [2000] [available [here]).

People v Rivera, 200 NY Slip Op 06583 [here].

Just so it is clear, that was the Court's entire discussion of this issue. Hope that clears things up. (But didn't the Court hold in Arnold that similar language was too equivocal?)

Under New Management

I am leaving the Monroe County Public Defender's Office at the end of the month. I'll be joining these guys, doing mostly civil litigation. Since I will not be practicing much criminal law, I have decided to hand the reigns of this blog over to Brian Shiffrin. He is the First Assistant Public Defender here in Monroe County, and he has also been my supervisor during the entire time this blog has been up. I think it might be the first time in the history of blogging that a boss has taken over the blog of an employee. Brian brings enormous experience and talent to the table; it has been a great experience learning from him the past several years, and I am extremely happy that he has agreed to take over the day-to-day posting responsibilities here at Indignant Indigent. This blog is in very good hands going forward.